AN170120 – Metal and Engineering Industry Award
The provisions of this clause apply to an employee, other than one engaged as a casual or part-time employee in receipt of a loading in lieu of an entitlement to paid leave as specified in Part II –EMPLOYMENT RELATIONSHIP AND ASSOCIATED MATTERS Clause 1 – Contract of Employment subclause (c)(iii). The entitlements of casual employees and employees in receipt of a loading in lieu of an entitlement to paid leave are set out in subclause (j) – Casual Employees and Employees in Receipt of a Loading in lieu of Paid Leave – Caring Responsibilities.
(a) Definitions
The term ‘immediate family’ includes:
(i) spouse (including a former spouse, a de facto spouse and a former de facto spouse) of the employee. A de facto spouse means a person of the opposite sex to the employee who lives with the employee as his or her husband or wife on a bona fide domestic basis; and
(ii) child or an adult child (including an adopted child, a step child or an ex-nuptial child), parent, grandparent, grandchild or sibling of the employee or spouse of the employee.
(b) Amount of Paid Personal Leave
(i) Paid personal leave is available to an employee, when they are absent:
(1) due to personal illness or injury; or
(2) for the purposes of caring for an immediate family or household member who is sick and requires the employee’s care and support or who requires care due to an unexpected emergency.
(ii) The employee shall not be entitled to such leave of absence for any period in respect of which there is an entitlement to workers' compensation.
(iii) The employee shall not be entitled in any year (whether in the employment of one employer or of more) to personal leave credit in excess of 76 hours ordinary working time.
(iv) For the purpose of administering paragraph (iv) of this subclause, an employer may within one month of this award coming into operation or within two weeks of the employee entering new employment require an employee to make a sworn declaration or other written statement as to what paid leave of absence has occurred from any employer during the then current year, and upon such statement the employer shall be entitled to rely and act.
(v) In the case of employees paid in accordance with Part III - Wages and Related Matters, Clause 1 – Wage Rates, subclause 2 – Piece-Work personal leave entitlements shall be calculated on a proportionate basis.
(vi) Sickness on Day Off
Where an employee is sick or injured on the weekday the employee was to take off in accordance with Part V - Hours of Work, Penalty Payments and Overtime, Clause 1 - Hours of Work, such employee shall not be entitled to personal pay nor personal pay entitlement be reduced.
(vii) Alternative Methods of Payment
Where the employer and the majority of employees concerned agree, an alternative method of calculating personal leave entitlements to that provided for in this clause may be introduced.
(c) Personal Leave for Personal Injury or Sickness
An employee is entitled to use the full amount of their personal leave entitlement including accrued leave for the purposes of personal illness or injury, subject to the conditions set out in this clause.
(d) Personal Leave to Care for an Immediate Family or Household Member
(i) An employee is entitled to use up to 10 days personal leave, including accrued leave, each year to care for members of their immediate family or household who are sick and require care and support or who require care due to an unexpected emergency, subject to the conditions set out in this clause.
Leave may be taken for part of a single day.
(ii) By agreement between an employer and an individual employee, the employee may access an additional amount of their accrued personal leave for the purposes set out in paragraph (d)(i), beyond the limit set out in paragraph (d)(i). In such circumstances, the employer and the employee shall agree upon the additional amount that may be accessed.
(e) Employee Must Give Notice
The employee shall, wherever practicable, notify the employer of their inability to attend for work prior to the first shift of such absence. As far as practicable, the employee shall state the nature of the illness or injury and estimated duration of the absence.
(f) Evidence Supporting Claim
(i) The employee shall prove to the satisfaction of the employer (or in the event of a dispute, the Tasmanian Industrial Commission) that the employee was unable on account of such illness or injury to attend for work on the day or days for which the personal leave is claimed.
(ii) When taking leave to care for members of their immediate family or household who require care due to an unexpected emergency, the employee must, if required by the employer, establish by production of documentation acceptable to the employer or a statutory declaration, the nature of the emergency and that such emergency resulted in the person concerned requiring care by the employee.
(g) Personal leave shall accumulate from year to year so that any balance of the period specified in subclause (a)(iv) of this clause which has in any year not been allowed to an employee by an employer as paid personal leave shall be credited to the employee, and subject to the conditions herein before prescribed shall be allowed by that employer in a subsequent year without diminution of the personal leave prescribed in respect of that year.
(h) An employer shall not be required to make any payment in respect of accumulated personal leave credits to an employee who is discharged or leaves their employment, or for any time an employee is absent from work without producing satisfactory evidence of personal illness.
(i) Unpaid Personal Leave
Where an employee has exhausted all paid personal leave entitlements, they are entitled to take unpaid personal leave to care for members of their immediate family or household who are sick and require care and support or who require care due to an unexpected emergency. The employer and the employee shall agree on the period. In the absence of agreement, the employee is entitled to take up to two days (up to a maximum of 16 hours) per occasion, provided the requirements of subclauses (e) and (f) are met.
(j) Casual Employees and Employees in Receipt of a Loading in lieu of Paid Leave – Caring Responsibilities
Subject to the evidentiary and notice requirements in subclauses (e) and (f), casual employees and employees in receipt of a loading in lieu of paid leave, are entitled to not be available to attend work, or to leave work if they need to care for members of their immediate family or household who are sick and require care and support, or who require care due to an unexpected emergency, or the birth of a child.
The employer and the employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. Casual employees and employees in receipt of a loading in lieu of paid leave are not entitled to any payment for the period of non-attendance.
An employer must not fail to re-engage a casual employee because the employee accessed the entitlements provided for in this clause. The rights of an employer to engage or not to engage a casual employee are otherwise not affected.
2. SICK LEAVE [DELETED]
